Paxton v. Paxton, 2-980A298
| Decision Date | 01 June 1981 |
| Docket Number | No. 2-980A298,2-980A298 |
| Citation | 420 N.E.2d 1346 |
| Parties | Austin PAXTON, Appellant (Respondent Below) v. Jo Ann PAXTON, Appellee (Petitioner Below). |
| Court | Indiana Appellate Court |
John W. Donaldson, David F. Truitt, Donaldson & Andreoli, Lebanon, for appellant.
Austin Paxton (Austin) appeals from a Decree of Dissolution awarding maintenance to his wife Jo Ann Paxton (Jo Ann), claiming trial court error in that (1) the finding of impairment is not supported by sufficient evidence, (2) maintenance should not have been awarded because Austin himself is incapacitated, and (3) his social security and firemen's pension fund may not be attached and considered in awarding maintenance.
We affirm.
Jo Ann initiated this action on August 21, 1979, by filing a Petition for Dissolution of Marriage. At a hearing on the Petition for Dissolution, Jo Ann testified concerning her physical impairment:
Q. Okay. Your income is what we call S.S.I, you are disabled, is that correct?
A. Yes.
Q. And what is your disability?
A. I have rheumatoid arthritis and uncontrolled hypertension.
Q. And you are able to hold any job because of this?
A. No.
Also disclosed at the hearing was that Austin's income consists of $233.00 per month from social security disability payments plus $459.15 per month from a pension fund established for firemen of Frankfort, Indiana ($692.15 per month total).
In awarding maintenance to Jo Ann of $112.50 per month, the trial court specifically found that she was disabled and that, although the pension and social security were not attachable, they could be considered in determining the amount of maintenance. The Decree of Dissolution reads in part:
The Court further finds that Petitioner is disabled and the Respondent's firemen's retirement and Social Security are not attachable but are proper items to consider for an award of temporary maintenance payable to petitioner in the amount of $112.50 per month.
Further, the Court finds that Petitioner shall pay $360.00 of the bill due and owing to Sears Roebuck and Co., and Respondent shall be responsible for the balance due and owing to Sears Roebuck and Co.
1. Is the finding of incapacity supported by the evidence?
2. May maintenance be awarded to Jo Ann even though Austin also is physically or mentally incapacitated?
3. May income from Austin's social security and firemen's retirement fund (pension) be considered and awarded in providing maintenance?
ISSUE ONE Incapacity
Is the finding of incapacity supported by the evidence?
PARTY'S CONTENTION Austin says that the finding of incapacity, a prerequisite to an award of maintenance, is not supported by sufficient evidence because no medical testimony confirmed Jo Ann's testimony.
Jo Ann has not favored us with an appellee's brief.
CONCLUSION The issue is waived.
Because Jo Ann has not submitted an appellee's brief, Austin may obtain reversal upon demonstrating prima facie error. Day v. West, (1978) Ind.App. 373 N.E.2d 935; Colley v. Carpenter, (1977) Ind.App., 362 N.E.2d 163. However, Austin has waived the sufficiency issue by failing to cause a judge's certificate to be attached to the transcript of the trial proceedings.
Ind.Rules of Procedure, App. Rule 7.2(A)(4) explicitly provides for the trial judge's signature and certification of the transcript. Failure to comply waives consideration of any issue which can only be ascertained by reference to the record. Dahlberg v. Ogle, (1977) 266 Ind. 524, 364 N.E.2d 1174; Bailey v. State, (1934) 206 Ind. 547, 188 N.E. 575; Rosenblower v. Schuetz, (1894) 141 Ind. 44, 40 N.E. 256; Taylor v. Butt, (1972) 154 Ind.App. 196, 289 N.E.2d 159. See Stewart v. State, (1980) Ind., 402 N.E.2d 973 ().
Had the issue not been waived, the result would be the same. The finding of incapacity was supported by sufficient evidence.
Ind.Code § 31-1-11.5-9(c) permits an award of maintenance to a spouse only if that spouse is incapacitated. Jo Ann testified that she was incapacitated and could not work. Austin claims that such testimony, absent corroborating medical testimony is insufficient to support an award and cites four Indiana cases which do not support his contention. 1 So the finding of incapacity stands.
Can maintenance 2 be awarded to Jo Ann even though Austin also is physically or mentally incapacitated?
PARTY'S CONTENTION Austin contends that the statute providing for maintenance does not contemplate an award of maintenance to one spouse when the other spouse also is "incapacitated."
CONCLUSION Maintenance may be awarded to Jo Ann even though Austin may be physically or mentally incapacitated.
The trial court made only one specific finding as to incapacity, i. e., "that Petitioner (Jo Ann) is disabled." No finding was made as to Austin, although there was evidence of his physical disability. According to the Dissolution Statute, maintenance may be awarded only in the limited circumstances detailed in IC § 31-1-11.5-9(c) (emphasis added), which reads
The court may make no provision for maintenance except that when the court finds a spouse to be physically or mentally incapacitated to the extent that the ability of such incapacitated spouse to support himself or herself is materially affected, the court may make provision for the maintenance of said spouse during any such incapacity, subject to further order of the court.
To the extent Austin claims that an award is improper when both spouses are "incapacitated," he implicitly speaks to the discretionary power of the trial court to award maintenance. In exercising its discretion to award maintenance, one factor the trial court must consider is "the ability of the spouse for whom maintenance is sought to meet his needs while meeting those of the other spouse seeking maintenance." Temple v. Temple, supra, at 230. So it would seem whether a husband is incapacitated goes to the court's discretion to award maintenance, not to its power.
There is no language in the Dissolution Act which can directly or indirectly be construed as prohibiting a trial court in its discretion from requiring an "incapacitated" spouse to pay maintenance to a spouse specifically found to be mentally or physically incapacitated. Austin cites no case or statutory authority to the contrary, and we know of none.
May income from Austin's social security and firemen's retirement fund (pension) be considered and awarded in providing maintenance?
PARTY'S CONTENTION Austin claims that in providing maintenance to Jo Ann the trial court may neither attach nor consider his disability income from social security or his firemen's pension. The social security benefits, he says, may not be attached or considered under the terms of the Social Security Act, 42 U.S.C. § 301 et seq. (1974), and the pension may not be attached or considered under the terms of the Indiana exemption statute, IC § 18-1-12-11.
CONCLUSION Income from Austin's social security was properly considered and awarded in providing maintenance, and income from his pension while not awarded was properly considered in providing maintenance.
Although the trial court purported to consider but not attach income from social security and the pension, the proper question is whether the purpose of the anti-attachment statute was violated. 3 Austin's total income is comprised of the social security benefits and the pension. The award for maintenance ($112.50) was less than the monthly income from the social security ($233.00) and the pension ($459.15), so income from one source was awarded in providing maintenance. See Hisquierdo v. Hisquierdo, (1979) 439 U.S. 572, 99 S.Ct. 802, 809, 59 L.Ed.2d 82 (). Accordingly, we determine whether these payments could properly be considered and awarded in providing maintenance without violating the purpose of anti-attachment statutes.
Social security benefits may be considered and awarded in providing maintenance by the very terms of the Social Security Act. Under federal law, legal process may be invoked against a recipient of social security benefits for "his legal obligation to provide child support or make alimony payments." 42 U.S.C. § 659(a) (1975) (emphasis added). The definition of "alimony" for the purposes of this section includes "maintenance" and "support." Id. § 662(c).
Cases cited by Austin, Hisquierdo v. Hisquierdo, supra, and Umber v. Umber, (1979) Okla., 591 P.2d 299, do not call for a different result. The rule in those cases was that social security benefits could not be reached as a property settlement but could be reached for support payments.
Thus we conclude that social security benefits could properly be awarded by the trial court in providing maintenance. Because the trial court specifically considered the pension in determining maintenance, we should determine whether it properly did so.
An Indiana general exemption statute precludes legal execution against benefits payable from the firemen's retirement fund (pension), IC § 18-1-12-1 et seq. The exemption statute, id. § 18-1-12-11, reads:
No part of such pension fund shall, either before or after any order for the distribution thereof to members of such fire force, or to the widows or guardians of any such child or children or to the dependent father, mother, brother or sister of any such deceased, disabled or retired member of such force, be held, seized, taken, subjected to, detained, levied on by virtue of any attachment, execution, judgment, writ, interlocutory or other order, decree or process, or proceedings of any nature whatever issued out of or by...
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